BANK TRUST NATIONAL ASSOCIATION AS TRUSTEE FOR VRMTG ASSET TRUST v. SANDOVAL 10 (2023)

In this residential mortgage foreclosure action, the defendants, Angel Sandoval and Yolanda Sandoval (hereafter, “defendants”), have moved for an order dismissing the amended complaint pursuant to CPLR 3211(a)(1). The Court has considered the following papers on the motion:

1. Notice of Motion, Tarson Affirmation in Support, together with Exhibits A through F;

2. Degan Affirmation in Opposition; and

3. Tarson Reply Affirmation.

Plaintiff commenced this action by filing a Summons and Complaint on September 15, 2022, seeking to foreclose on a mortgage dated September 21, 2001, given by defendants to Wells Fargo Home Mortgage, Inc., relative to the premises located at 14 Mountainview Lane, Garnerville, New York. At the time this action was commenced, there was a separate mortgage foreclosure action pending between the same parties concerning the same mortgage (Rockland County, Index No. 035306/2021) (hereafter, “the 2021 action”).¹

In the instant case, plaintiff served RPAPL § 1304 notices to defendants on or about May 4, 2022. Admittedly, this was during the pendency of the 2021 action, but more than ninety (90) days before the commencement of the instant action. Defendants allege that the RPAPL § 1304 notices in the instant action are defective as they were sent while the 2021 action was pending, which they claim violates the entire purpose of RPAPL § 1304, which is to provide the homeowners with a 90-day window of time to work out a resolution and avoid litigation altogether.

Plaintiff argues that the Court should strictly construe RPAPL § 1304 as it mandates a condition precedent and is therefore a derogation of plaintiff's common law right to pursue an action in foreclosure. Accordingly, plaintiff claims that strict construction of the statute does not require plaintiff to discontinue the 2021 action before serving the RPAPL § 1304 notices in this action.

There is no dispute that the remedial purpose of RPAPL § 1304 is to aid the homeowner in attempting to avoid litigation (see, Emigrant Bank v. Cohen, 205 A.D.3d 103, 164 N.Y.S.3d 863; Aurora Loan Services, LLC v. Weisblum, 85 A.D.3d 95, 923 N.Y.S.2d 609). As such, and contrary to plaintiff's contention, RPAPL § 1304 is to be liberally construed to effectuate its remedial intent (see, Makinen v. City of New York, 30 N.Y.3d 81, 88, 64 N.Y.S.3d 622, 86 N.E.3d 514 [2017], quoting Matter of Scanlan v. Buffalo Pub. School Sys., 90 N.Y.2d 662, 667, 665 N.Y.S.2d 51, 687 N.E.2d 1334 [1997]; Post v. 120 E. End Ave. Corp., 62 N.Y.2d 19, 24, 475 N.Y.S.2d 821, 464 N.E.2d 125 [1984] [“remedial statute should be liberally construed to spread its beneficial effects as widely as possible”]; McKinney's Cons. Laws of NY, Book 1, Statutes § 321 [“Generally, remedial statutes are liberally construed to carry out the reforms intended and to promote justice”]).

In addition to the foregoing, the Court also notes that “a foreclosure action is equitable in nature and triggers the equitable powers of the court” (U.S. Bank N.A. v. Losner, 145 A.D.3d 935, 937, 44 N.Y.S.3d 467; US Bank N.A. v. Williams, 121 A.D.3d 1098, 995 N.Y.S.2d 172; Mortgage Elec. Registration Sys., Inc. v. Horkan, 68 A.D.3d 948, 890 N.Y.S.2d 326). “Once equity is invoked, the court's power is as broad as equity and justice require” (U.S. Bank N.A. v. Losner, 145 A.D.3d at 938, 44 N.Y.S.3d 467).

Based upon the foregoing, the Court finds that RPAPL § 1304 is to be interpreted liberally, rather than strictly, in order to effectuate its remedial intent. As such and under the circumstances, including the Court's equitable powers, it is the opinion of this Court that the plaintiff's RPAPL § 1304 notices in the instant case are violative of the statute's purpose of assisting homeowners to avoid foreclosure litigation. To permit service of said notices while a foreclosure action is already pending, would circumvent the statute and negate its protective purpose.

Accordingly, it is

ORDERED, that defendant's motion to dismiss the complaint herein is granted.

The foregoing shall constitute the Decision and Order of the Court.

FOOTNOTES

1.   The 2021 action was discontinued by Stipulation of the parties on October 28, 2022, due to issues regarding the RPAPL 1304 notice.

Rolf M. Thorsen, J.